from the more-rights,-more-problems dept

Some research [PDF] has emerged indicating handing officers extra rights results in more citizen complaints. This may seem to be of the "water is wet" research variety, but there's no reason to shrug this off. While most of us can infer that shielding officers from the consequences of their actions would naturally result in increased misconduct, almost all evidence to date has been anecdotal. (h/t Marginal Revolution)

University of Chicago researchers were given the perfect chance to weigh the addition of a collective bargaining agreement against year-to-year complaint totals. Thanks to a 2003 Florida state supreme court decision, Florida sheriff's deputies were allowed to unionize, finally joining their police department counterparts. This gave the researchers a dividing line for a before and after comparison. The results were unsurprising.

We construct a comprehensive panel dataset of Florida law enforcement agencies starting in 1997, and employ a difference-in-difference approach that compares sheriffs’ offices and police departments before and after Williams. Our primary result is that collective bargaining rights lead to about a 27% increase in complaints of officer misconduct for the typical sheriff’s office.

That's an impressive jump and it can be tied to the addition of a collective bargaining agreement. The union's bargaining power secured a lengthy list of extra rights for deputies. While due process should be afforded to everyone, the version of due process citizens make do with contains none of these perks and protections.

[F]lorida provides by statute a Law Enforcement Officer Bill of Rights (“LEOBOR”), which includes a variety of procedural protections for officers facing disciplinary investigations. One provision gives such an officer the right to “be informed of the nature of the investigation before any interrogation begins,” and to receive “all witness statements . . . and all other existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation, . . . before the beginning of any investigative interview of that officer” (F.S.A§ 112.532(1)(d)). That is particularly generous given another requirement that “[a]ll identifiable witnesses shall be interviewed, whenever possible, prior to the beginning of the investigative interview of the accused officer” (id.).

And that's not even the whole list of additional "due process" goodies Florida deputies received.

[S]ome Florida CBAs give law enforcement officers the right to challenge any discipline the local government seeks to impose through arbitration or other administrative review, thus depriving the government of the power to make independent disciplinary decisions. Other rights include a time limitation on internal disciplinary investigations, expungement of old records even when the officer is found to have engaged in misconduct, and inspection of investigation files prior to a disciplinary hearing… [A]ll of these additional procedural rights raise the cost of terminating misbehaving officers and thereby lower deterrence.

The researchers note the conclusions aren't definitive. There's no control group to observe and it's tempting to let correlation infer causation. But the research is as thorough as it can be, given the limited dataset. Law enforcement agencies closely guard internal documents on police misconduct. In some states, public records laws make it illegal to release any of these files to the public, forcing researchers to work blind.

But this paper does show there's something wrong with union agreements and has the math to back up the seemingly obvious conclusions. When you give people with power more power and less accountability, abuse is usually the result. Whether the union agreements are responsible for all of the 27% jump in complaints is debatable, but the numbers show the agreements have made policing worse, rather than better.

from the oops dept

Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.

However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.

In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.

The Court finds that there is a “manifest showing” of the Court’s “failure to consider
material facts presented to the Court” because the Court did not provide any justification for the
permanent injunction.

Yes, that's the judge chastising himself for not providing the necessary justification for an injunction after finding Zazzle to not have safe harbors (some of the background here involves a question about which rules -- federal or local -- the court should be using to reconsider the earlier ruling, which isn't that interesting). Unfortunately, Wilson doesn't go back and revisit the DMCA safe harbors question -- this new ruling just focuses on why he was wrong to issue a permanent injunction after finding that the DMCA safe harbors didn't apply.

For that, the court notes (correctly, this time!) that under the Supreme Court's important MercExchange standard, courts should be careful about issuing injunctions for infringement, and that the plaintiffs need to show irreparable harm and that other remedies aren't more appropriate (and that an injunction won't cause greater harm to the public). Here, the plaintiff failed to do all of those -- and somehow the court missed it.

In addition, the court does note that it never even considered the question about whether the artwork that is displayed on Zazzle's website, but not printed on t-shirts, still gives Zazzle safe harbor protections -- and the injunction would have applied to those works too, even though they might have been protected under the DMCA:

Plaintiff’s proposed permanent injunction was ambiguous and went beyond the issues at
trial, facts which the Court did not consider when it granted the initial motion for a permanent
injunction. Before trial, the Court never decided whether Zazzle had a viable DMCA defense as
to images only displayed on Zazzle’s website and never physically manufactured. Dkt. 81.
Plaintiff withdrew its claims as to such “display-only” artworks prior to trial, so the issue was not
tried. Dkt. 110 at 2:11-25. As such, it is unclear whether the injunction applies to both the
manufacture and distribution of physical goods, or also to display of images on the Zazzle
website. It is also unclear if Zazzle must take “reasonable” steps to address the display of images
on its website as well as its manufacture of products. The Court did not consider these material
facts in determining the scope of the permanent injunction; upon reviewing these facts, the
proposed injunctions go beyond the issues at trial.

It's good that the court has realized its own mistakes and fixed them -- though it would be nice if it went further to the point of recognizing the problems of saying that by printing an image on a physical good the DMCA protections disappear.

But, really, reading this new ruling, you almost (almost) feel bad for Judge Wilson as he complains about Judge Wilson's failings in this case:

The Court recognizes that it failed to consider material facts in granting the permanent
injunction in October 2017. The Court also recognizes that it provided no rationale for the
permanent injunction, manifestly showing the failure to consider such facts. Upon considering
those facts, the Court finds no basis for a permanent injunction in this matter.

Don't be too hard on yourself, Judge. Admitting your mistakes is the first step.

from the to-end-career,-blow-whistle dept

A report by Kevin Poulsen for The Daily Beast shows, once again, that those suggesting Ed Snowden should have used the proper channels to voice his concerns about domestic surveillance are either ignorant or deliberately obtuse.

Just prior to the Snowden leaks, President Obama enacted Presidential Policy Directive 19, which was supposed to prevent retaliation for whistleblowing. It was issued in 2012 and went into force just months before Snowden left the NSA with a trove of documents. However, it did not protect contractors like Snowden. Those protections were added by Congress years later. Not that it really matters. It has been well established those protections are mostly worthless.

Over the past year, there's been a concerted effort to oust Dan Meyer -- the person Intelligence Community whistleblowers are supposed to take their complaints to. Meyer filed his own whistleblowing complaint against the Defense Department, claiming IC officials retaliated against him for exposing waste and misuse of funds. Those gunning for top-level positions in Trump's Intelligence Community have histories of retaliatory behavior against whistleblowers, which would further cement the reputation of the "official channels" as a good way to jettison your career.

The investigators looked into 190 cases of alleged reprisal in six agencies, and uncovered a shocking pattern. In only one case out of the 190 did the agencies find in favor of the whistleblower—and that case took 742 days to complete. Other cases remained open longer. One complaint from 2010 was still waiting for a ruling. But the framework was remarkably consistent: Over and over and over again, intelligence inspectors ruled that the agency was in the right, and the whistleblowers were almost always wrong.

This damning report has never been presented to intelligence oversight nor to the general public. It was buried by the new head of the IC Inspector General's office.

The report was near completion following a six-month-long inspection run out of the Intelligence Community Inspector General office. It was aborted in April by the new acting head of the office, Wayne Stone, following the discovery that one of the inspectors was himself a whistleblower in the middle of a federal lawsuit against the CIA, according to former IC IG officials.

Stone also sequestered the mountain of documents and data produced in the inspection, the product of three staff-years of work. The incident was never publicly disclosed by the office, and escaped mention in the unclassified version of the IC IG’s semiannual report to Congress.

In essence, the IC has no independent oversight. That's not going to prevent whistleblowers from losing their jobs or security clearances. If the oversight is burying reports and withholding findings from its Congressional oversight, then there's really no reason whistleblowers should stick to the proper channels. If the IC wanted to shut down leaks, this was completely the wrong way to handle it. If careers are on the line, IC employees may as well take their complaints to the press, where they'll get heard, rather than to their supervisors or the Inspector General's office.

The numbers quoted in the Daily Beast's report show there's scant chance the Inspector General's office will be of any help to whistleblowers. Even if whistleblowers aren't suffering direct retaliation, the office's ability to "wait it out" prevents whistleblowers from escalating complaints further than the office uninterested in investigating complaints. To move forward, there must be some form of ruling or determination from the Inspector General. Without it, complainants have almost zero chance to seek other remedies, including suing agency officials for workplace retaliation.

The burial of this report by the Inspector General shows the official channels have suffered a perverse form of regulatory capture. The IG is no longer independent. It's owned and operated by the Intelligence Community, highly-deferential to officials who have nothing to gain if whistleblower complaints are sustained. It was arguably worse when Snowden left for Hong Kong. The bad news is it hasn't gotten any better over the last five years.

from the yeah,-sure dept

Techdirt has been following the ridiculous proposal to extend EU copyright even further to include tiny snippets from articles for years now. The idea has already been tried twice in the European Union, and failed dismally on both occasions. In Spain, a study showed the move there caused serious economic damage, especially to smaller companies; German publishers tacitly admitted the law was pointless when they granted Google a free license to use snippets from their titles. More recently, the European Commission's own research confirmed that far from harming publishers, news aggregators have a positive impact on the industry's advertising revenue. Despite the clear indications that a snippet tax is a terrible idea, some want to go even further, and make it apply to hyperlinks too. Writing in the French newspaper Le Monde back in December, large news agencies including Germany's DPA and France's AFP complained that sites:

offer internet users the work done by others, the news media, by freely publishing hypertext links to their stories. […] Solutions must be found. […] We strongly urge our governments, the European parliament and the commission to proceed with this directive.

Now EU publishers have weighed in on the snippet tax, formally known as Article 11 of the proposed Copyright Directive. Their latest position paper, embedded below, makes a confession:

We acknowledge that concerns have been raised that Article 11 as proposed by the Commission may have a negative effect on the legitimate personal non-commercial use of excerpts from press publications by a natural person by way of hyperlinking or sharing.

But there's no reason to worry, they say, for the following reason:

However, we would like to emphasize that it is in publishers' interest to make their products available as widely as possible, on as many platforms as possible and this is why publishers themselves encourage their readers to share articles and news on social media for free.

In other words: trust us, we won't misuse a new right to forbid anyone from sharing even tiny snippets. Except, of course, copyright holders have repeatedly abused their intellectual monopoly to censor material, in precisely this way. EU publishers want this new right to block snippets to apply even to single words:

We therefore question the necessity of introducing in the new [EU] Presidency's compromise text, a reduction of the scope of protection granted to press publishers to acts of reproduction and making available to the public performed by "service providers" and excluding "individual words or very short extracts of text".

They also want to extend the scope of the snippet ban:

In our view it is essential that any commercial entity or organisation, regardless of their business model, including those currently licensed by press publishers, exclusively or collectively, continues to be within scope of protection. Typically these organisations can be aggregators, media monitoring and press clipping agencies, individual companies, or public institutions.

This isn't just about making search engines pay for the privilege of using snippets of text: it would include every company, of whatever size, and every public body, however meritorious or altruistic its activities, that uses them. The new position paper is important because it makes clearer than ever before that the snippet tax is not about stopping a few big players like Google from indexing stories from publications. After all, that could be easily achieved by blocking the crawlers using the robot.txt file. Article 11 is about something much bigger. It is the latest expression of the publishing industry's apparently infinite sense of entitlement -- that it has a right to control even "individual words or very short extracts of text" used by "any commercial entity or organisation, regardless of their business model", as the document puts it. The egotism of publishers is so monstrous that they don't even care if achieving this insane level of control over the Internet goes against their own economic interests, as the evidence shows it will. Power, it seems, is more important than profits.

from the helluva-an-effort-there,-Trumpy dept

The government's antipathy towards FOIA requesters is well-documented. Our last president declared his White House to be the Openest Place on Earth. This was followed by a clampdown on FOIA responses, huge increases in withheld documents, and a war on whistleblowers. The Trump Administration has made no such promises. Good thing, too, as the uncontrollable mouth running the country would make these promises impossible to keep. We're living in a halcyon era of unprecedented, if inadvertent, government transparency. Whatever multitudinous leakers won't provide, the president will hand over himself via Twitter or televised interviews.

Late last year, Trump handed plaintiffs in two FOIA lawsuits a gift when he undercut an FBI Glomar response ("neither confirm nor deny") by confirming FBI investigations (and FISA court involvement) in domestic surveillance. Trump has done it again, thanks to approving the release of the Nunes memo. Again, FOIA requesters seeking information about FBI domestic surveillance have been handed a gift by the Commander in Chief, as Politico reports.

During a hearing on a bid by BuzzFeed to get more information about how a so-called dossier compiled by a former British spy was handled, U.S. District Court Judge Amit Mehta grew frustrated with a Justice Department lawyer who argued that Trump’s declassification order did not alter the contours of the legal dispute.

Mehta said the government would normally be entitled to deference in asserting the need to keep its investigative work under wraps, but perhaps no longer with respect to the dossier.

“This isn’t the ordinary case,” Mehta told a Justice Department lawyer, Anjali Motgi. “I don’t know of any time the president has declassified the fact of a counterintelligence investigation. That’s going to be a hard sell given what the president has done. … This is a new frontier and it has an impact.”

The DOJ tried to argue that Trump's declassification of the memo wasn't an endorsement of its contents. The judge found this assertion literally incredible, saying she found it impossible to believe the DOJ and the White House disagreed about the factual basis of the released memo. If the DOJ can't find a way to push this argument past the judge, Buzzfeed will likely gain access to documents it might need to defend itself from a libel lawsuit brought by someone mentioned in the Steele dossier. If nothing else, the declassification of the memo shows there's substantial public interest in the contents of the dossier, which would buttress Buzzfeed's claims that publishing it (without verifying the contents first) was "fair reporting" on government activities.

The DOJ, however, continues to insist the sought documents, even if released, change nothing for Buzzfeed. But to make this argument it has to sell its first argument -- that the facts disclosed by the Nunes memo are not actually facts. The DOJ will get to make this argument in person, behind closed doors with the judge, where it will argue that releasing documents to Buzzfeed would harm its ongoing investigation.

On top of this turn of events, the Nunes memo's release has also forced the DOJ to change its opacity stance in other FOIA lawsuits.

In one of those FOIA cases on Wednesday, government lawyers notified the court that the president’s declassification actions forced them to withdraw a refuse-to-confirm-or-deny response issued on requests that USA Today reporter Brad Heath and the pro-transparency James Madison Project made for surveillance warrants on Trump associates.

The DOJ may end up having to release documents it doesn't want to release, thanks to the president and legislators aligned with Nunes. All it can do right now is buy time. And it will be an indefinite amount of time, apparently.

“Given recent events, and the possibility of additional declassifications by the president,” the lawyers wrote, “the government is unable at this time to propose a timetable to conduct this review.”

The Forever War on Transparency continues, but it's being frustrated by self-serving acts of openness by the White House. I guess we're the beneficiaries of accidental largesse, although it may be outweighed by other damaging White House acts and policies. However, someone writing about issues like these should never wish to live in uninteresting times, so the remainder of the Trump presidency should provide plenty of transparency yin/yang moments like these, where the government's natural affinity for opacity is undone by the Commander in Chief's proclivity for outing company secrets whenever it seems it might serve his singular narrative.

from the good-deals-on-cool-stuff dept

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from the giving-them-what-they-wanted dept

Last week, we wrote about the Mueller indictment of 13 Russians and three Russian organizations for fraud in trying to sow discord among Americans and potentially influence the election by trolling them on social media. If you haven't read the indictment yet, I recommend doing so -- or at least reading Garrett Graff's impressive attempt at basically turning the indictment into one hell of a narrative story. The key point I raised in that article was that the efforts the Russians undertook to appear to be American shows
how difficult-to-impossible it would be to demand that the various internet platforms magically block such trolling attempts in the future.

But, there's a larger issue here that seems worth exploring as well. Among the various attacks aimed at social media companies (mainly Facebook) it feels that many are using this as yet another excuse to demand more regulation of these platforms or to poke more holes in Section 230 of the CDA.

We've already spent many posts explaining why undermining CDA 230 will do a lot more harm than good, but it seems worth especially highlighting how undermining it here in response to Russian attacks would only help the Russians accomplish what it is they've set out to do. CDA 230 is a key aspect of enabling free speech online. It's what allows platforms to host our speech without having to carefully review it before it's allowed, or take it down at the first sign of complaint (allowing a heckler's veto). This is tremendously important in making the internet a platform for everyone, as opposed to just the elite and connected. And, yes, with that comes serious challenges, because some people will inevitably seek to abuse that openness to try to turn us against each other (as appears to have happened here).

But it would be quite an "own goal" to turn around and dismantle the tools that enable free speech in response to foreign attacks.

As Julian Sanchez points out at the NY Times, the Russian government is annoyed by the US criticizing them for online censorship -- so pushing social media companies to censor more in the US would help the Russians point out what hypocrites the Americans are and continue to suppress opposing political points of view:

No less than our “meddling” in their internal elections, Russia has long resented United States criticism of the country’s repressive approach to online speech. Their use of online platforms to tamper with our presidential race reads not only as an attack, but as an implicit argument: “The freedoms you trumpet so loudly, your unwillingness to regulate political speech on the internet, your tolerance for anonymity — all these are weaknesses, which we’ll prove by exploiting them.”

Urgent as it is for the United States to take measures to prevent similar meddling in the next election, we should be careful that our response doesn’t constitute a tacit agreement.

I'm not one to believe the idea that Russians are such implicitly brilliant tacticians that they'd deliberately play the US into taking the exact response they want, but we should be quite careful about undermining our own freedoms and our own services just because some people were able to exploit them. Not only does it harm our own society in the long run, it also gives a fairly explicit basis for lots of repressive regimes (including, but in no way limited to, Russia) to use that as something to point to as they push much greater suppression of free speech.

from the sandboxing-the-web,-one-country-at-a-time dept

Germany's new law, targeting hate speech and other unpleasantness online, is off to a roaring start. Instead of cleaning up the internet for German consumption, the law has been instrumental in targeting innocuous posts by politicians and taking down satirical content. The law is a bludgeon with hefty fines attached. This has forced American tech companies to be proactive, targeting innocuous content and satire before the German government comes around with its hand out.

It took only 72 hours for the new law (Netzwerkdurchsezungsgesetz, or NetzDG) to start censoring content that didn't violate the law. Some German officials have expressed concern, but the government as a whole seems content to let more censorship of lawful content occur before the law is given a second look. The things critics of the law said would happen have happened. And yet the law remains in full effect.

While intended to stop the spread of disinformation and hateful rhetoric online, recently published “local law” complaints show that would-be censors are using NetzDG to target all variety of content, including mainstream news stories, sexual words and images, an anti-Nazi online forum, and criticism of German Chancellor Angela Merkel and of the NetzDG law itself.

So, that's how the law is working out. Sterling's post is filled with takedown notices forwarded to the Lumen Database -- all of them targeting speech that doesn't appear to be unlawful even under Germany's screwed up laws. It also appears there's a concerted effort being made to shut down criticism of Angela Merkel, targeting German author Martin Hilpert, who rarely has anything nice to say about the German Chancellor. The notices also target two German news publishers, with the attendant irony apparently lost on the censors issuing the notices.

The complaint against FAZ states that the newspaper engaged in “harmful or dangerous acts” for a story about NATO, while the complaint against Heise states thatthe tech website engaged in “hate speech or political extremism” for publishing concerns by the EU Commission that NetzDG could lead to “possible abuse by governments seeking to limit freedom of expression.”

If you can't see/read the text, it says under "Explanation of Complaint"

Issue type: Sexual content Google received a request to remove content from Google Plus based on the Netzwerkdurchsetzungsgesetz. It's indecent

And it is! But no so much you'd think a government entity would need to be involved!

The only surprising thing about the post is that it received positive answers, which seems contrary to how the internet usually works.There's no telling the level of sincerity in the offers, but I would imagine they're at least as sincere as the original post.

Germany's attempt to control the internet is going to cause immense amounts of collateral damage. It's unknown if any citizens have been charged for putting Nazi armbands on snowmen or shouting "I need sex" into the void, but service providers are taking few chances. Since they face fines equivalent to 40 million pounds per infraction, they're obviously erring on the side of caution when dealing with these takedown demands. That's not good for the internet as a whole and it's downright catastrophic for German citizens who are pretty much assured they'll be targeted by government takedowns for expressing their displeasure with these laws.

from the things-gonna-get-ugly dept

Large ISP lobbyists, the FCC and agency head Ajit Pai are going to be rather busy for the foreseeable future. In the wake of the agency's extremely unpopular net neutrality repeal, consumer groups note that 26 states (27 including a new effort in Kansas) have now taken action to protect net neutrality themselves -- with more efforts on the way. The efforts range from attempts to pass state-level net neutrality rules banning anti-competitive behavior, to executive orders modifying state procurement rules to prohibit ISPs that violate net neutrality from getting state money or securing state contracts.

Last week, Vermont became the fifth state to embrace the executive order route, approving new rules (pdf) that prohibit ISPs from securing state contracts if they engage in anti-competitive throttling, website blocking, or paid prioritization. In all instances, both the proposed state laws and executive orders provide ample leeway for the prioritization of essential services (like medical equipment) while allowing ISPs to engage in "reasonable network management."

That said, ISP lobbyists tend to be pretty good at convincing lawmakers to water down what "reasonable" means before or after the fact, something we saw with both the 2010 and the 2015 FCC rules. Net neutrality rules are also only as good as the willingness to actually enforce them, which historically hasn't been great. In other words, while these are well-intentioned efforts by many state leaders, it's going to be important to hold state leaders' feet to the fire on this issue, especially given the often comical influence ISPs have on state regulators and politicians.

Forseeing this state-level action, ISPs like Verizon and Comcast successfully lobbied the FCC to include language in its repeal banning states from enforcing net neutrality or protecting broadband subscriber privacy (in the wake of their other success killing privacy rules last year).

But the FCC's authority on this front remains uncertain. Many of the state leaders, like Montana Governor Steve Bullock, believe the executive orders fall outside of FCC jurisdiction anyway:

"Through the order, the State of Montana acts as a consumer—not a regulator. Because there's no mandate, and no new regulations, there's certainly no federal preemption. Companies that don't like Montana's proposed contract terms don't have to do business with the State."

We've noted a few times the irony involved in Ajit Pai's position on this subject. Pai is one of several ISP allies who have whined incessantly about the need to protect "state rights" when states are passing ISP-written protection laws intended to hamstring competition among telecom operators. Here you've got states actually trying to do right by consumers and you'll notice this interest in states rights magically disappears like morning dew in the mid-day heat.

Keep in mind, in addition to doing battle with 27 states, FCC boss Ajit Pai is also facing two different GAO inquiries into his odd behavior during the repeal, as well as a new FCC Inspector General investigation into whether Pai's too cozy with the companies he's supposed to be regulating. He's also facing a lawsuit by 22 State Attorneys General accusing him of ignoring the public interest in the repeal. That's in addition to the numerous lawsuits being filed by consumer advocates, activists, and the competing companies who'll be harmed by this blatant handout to Comcast and Verizon.

And while the rotating crop of dollar-per-holler "consultants," think tankers, lobbyists and PR folks are already deriding the "chaos" and "uncertainty" created by states crafting their own rules, that's again something these ISPs should have thought more deeply about before attacking consistent and arguably modest (by international standards) federal protections. They built this chaos, and shouldn't be allowed to tap dance around that fact.

from the really? dept

With more and more people attacking online trolls, one common refrain is that we should do away with anonymity online. There's this false belief that forcing everyone to use their "real name" online will somehow stop trolling and create better behavior. Of course, at the very same time, lots of people seem to be blaming online social media platforms for nefarious activity and trollish activity including "fake news." And Facebook is a prime target -- which is a bit ironic, given that Facebook already has a "real names" policy. On Facebook you're not allowed to use a pseudonym, but are expected to use your real name. And yet, trolling still takes place. Indeed, as we've written for the better part of a decade, the focus on attacking anonymity online is misplaced. We think that platforms like Facebook and Google that use a real names policy are making a mistake, because enabling anonymous or pseudononymous speech is quite important in enabling people to speak freely on a variety of subjects. Separately, as studies have shown, forcing people to use real names doesn't stop anti-social behavior.

All that is background for an interesting, and possibly surprising, ruling in a local German court, finding that Facebook's real names policy violates local data protection rules. I can't read the original ruling since my understanding of German is quite limited -- but it appears to have found that requiring real names is "a covert way" of obtaining someone's name which raises questions for privacy and data protection. The case was brought by VZBZ, which is the Federation of German Consumer Organizations. Facebook says it will appeal the ruling, so it's hardly final.

On the flip side, VZBZ is also appealing a part of the ruling that it lost. It had also claimed that it was misleading for Facebook to say that its service was "free" since users "pay" with their "data." The court didn't find that convincing.

It will certainly be interesting to see where the courts come out on this after the appeals process runs its course. As stated above, I think the real names policy is silly and those insisting that it's necessary are confused both about the importance of anonymity and the impact of real names on trollish behavior. However, I also think that should be a choice that Facebook gets to make on its own concerning how it runs its platform. So I'm troubled by the idea that a government can come in and tell a company that it can't require a real name to use its service. If people don't want to supply Facebook with their real name... don't use Facebook.

But, honestly, what's really perplexing is that this is all coming down at the same time that Germany -- especially -- has been trying to crack down on any "bad content" appearing on Facebook, demanding that Facebook wave a magic wand and stop all bad behavior from appearing on its site. I'd imagine that's significantly harder if it has to allow people to use the site anonymously. This is not to say that anonymity leads to more "bad" content (see above), but it certainly can make moderating users much more difficult for a platform.

So, if you're Facebook, at this point you have to wonder just what you have to do to keep the service running in Germany without upsetting officials. You can't let anything bad happen on the platform, and you can't get user's names. It increasingly seems that Germany wants Facebook to just magically "only allow good stuff" no matter how impossible that might be.